May 10, 2011

Senators Confirm Former ACLU Lawyer for Judgeship

The U.S. Senate voted today to confirm Edward Chen to the federal district bench in the Northern District of California, ending a debate that had revolved around Chen's past work on polarizing civil liberties cases.

Chen, a federal magistrate judge in San Francisco, had waited since 2009 for a confirmation vote. Republicans stalled his nomination at several turns because of his 16 years as a staff attorney for the American Civil Liberties Union Foundation of Northern California. Sen. Jeff Sessions (R-Ala.) accused Chen of having an “ACLU chromosome.”

Democrats, including California Sens. Dianne Feinstein and Barbara Boxer, defended Chen, saying the views of his past ACLU clients shouldn’t be attributed to him. They also said he had an unblemished record as a magistrate since 2001.

He will be the second Asian-American federal judge for the diverse Northern District, after the confirmation last year of U.S. District Judge Lucy Koh.

The Senate’s vote was 56-42, as a handful of Republicans crossed party lines to join Democrats supporting Chen. President Barack Obama nominated Chen in August 2009.

Sen. Chuck Grassley (R-Iowa), the ranking minority member of the Senate Judiciary Committee, spoke against Chen earlier in the day. He said he did not think Chen would be able to put aside his past advocacy in cases about private drug-testing and affirmative action.

“He was an advocate for the ACLU. He took very liberal positions on a variety of issues,” Grassley said.

Sen. Patrick Leahy (D-Vt.), the Judiciary Committee’s chairman, said the Senate’s debate over Chen had been “ugly.” He singled out Sessions’ comments about an “ACLU chromosome” and accused Republicans of trying to impose a ban on certain types of lawyers serving as judges.

“Almost every nominee who has been a practicing lawyer would be disqualified by one side or the other,” Leahy said.

The debate over Chen touched on the legacy of Fred Korematsu, who became the namesake of the 1944 U.S. Supreme Court ruling that upheld the internment of Japanese-Americans like him. Early in his career, Chen was on the legal team that got Korematsu’s conviction for evading internment overturned in 1983.

After Korematsu died in 2005, Chen gave a speech examining his own feelings about patriotism. Republicans criticized a line in the speech in which Chen described “feelings of ambivalence and cynicism” about U.S. patriotism, while Democrats said the full text of the speech demonstrates pride in America.

Wade Henderson, president of the Leadership Conference on Civil and Human Rights, praised the Senate’s vote. “Judge Chen’s experiences — as a magistrate judge and author of more than 300 opinions, a community advocate, a small business owner, and the son of immigrants — combine to make him a well-rounded candidate who will always seek to ensure just results for all litigants who appear before him,” Henderson said in a statement.

Chen’s confirmation became more likely last week, when a bipartisan group of 63 senators voted to block a filibuster on another district court nominee, Rhode Island trial lawyer John “Jack” McConnell Jr. McConnell went on to narrowly win confirmation, and senators and legal advocates said it would then be very difficult for Republicans to filibuster other district court nominees.